1971 (5) TMI 77 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the court to entertain an application under Order 9 Rule 13 of the Code of Civil Procedure after the enactment of the Delhi High Court Act, 1966.
2. Jurisdiction of the court to entertain execution applications for decrees passed before the enactment of the Delhi High Court Act, 1966.

Detailed Analysis:

1. Jurisdiction of the Court to Entertain an Application under Order 9 Rule 13 of the Code of Civil Procedure:

The primary issue was whether an application to set aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure should be filed in the court that originally passed the decree or in the High Court after the enactment of the Delhi High Court Act, 1966. The judgment analyzed the relevant sections of the Delhi High Court Act (Sections 5, 16, and 19) and the Code of Civil Procedure (Sections 37, 38, 141, 150, and Order 9 Rule 13).

The court concluded that the application under Order 9 Rule 13 should be filed in the High Court. The rationale was based on Section 150 of the Code of Civil Procedure, which states that when the business of any court is transferred to another court, the latter court shall have the same powers and duties as the former. Since the Delhi High Court Act transferred the jurisdiction of suits valued over Rs. 25,000 to the High Court, it was held that the High Court was the appropriate forum for such applications.

2. Jurisdiction of the Court to Entertain Execution Applications:

The second issue was whether execution applications for decrees passed by subordinate courts before the enactment of the Delhi High Court Act, 1966, should be filed in the High Court or the court that originally passed the decree. The court examined Sections 37 and 38 of the Code of Civil Procedure, which define the "court which passed the decree" and allow decrees to be executed by either the court that passed it or the court to which it is sent for execution.

The court referred to the Supreme Court's decision in Merala Ramanna v. Nallaparaja, which held that the court that passed the decree retains jurisdiction to execute it even if the subject matter falls within the jurisdiction of another court due to territorial or pecuniary changes. The court also cited a Full Bench decision of the Punjab High Court in Mehar Singh v. Kasturi Ram, which supported the view that the court which passed the decree and the court to which the jurisdiction is transferred both have concurrent jurisdiction to execute the decree.

The judgment concluded that both the subordinate court that passed the decree and the High Court have jurisdiction to entertain execution applications. However, the High Court may transfer the application to the appropriate court for execution if necessary.

Conclusion:

(A) All applications under the Code of Civil Procedure, other than execution applications, in suits decreed by subordinate courts before October 31, 1966, with a valuation exceeding Rs. 25,000, should be filed in the High Court.

(B) Execution applications in suits decreed by subordinate courts before October 31, 1966, with a valuation exceeding Rs. 25,000, can be entertained by either the court that passed the decree or the High Court. The court may then transfer the application to the appropriate court for execution if required.

The judgment emphasized that the objective is to facilitate the execution of decrees and not to create unnecessary obstructions. The applications were directed to come up for further proceedings before the Single Judge on July 16, 1971.